A statement is not hearsay if...[t]he declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with declarant's testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive.

Because such a prior consistent statement is not hearsay, it is admissible both to bolster the credibility of the declarant after her credibility has been attacked and as substantive evidence, i.e., to prove the truth of the matter asserted in the statement. Therefore, it is difficult for an appellate court to find plain error when the trial court erroneously finds that an alleged victim's statement qualified as a prior consistent statement. And yet, that is exactly what the Court of Appeals of Ohio, Eighth District, found in its recent opinion inState v. Rosa, 2010 WL 2007199 (Ohio App. 8 Dist. 2010).

In Rosa, Diana Rosa was convicted on five counts of unlawful sexual conduct with a minor based upon acts that her husband and she allegedly committed against 15 year-old family friend K.G. At Rosa's trial, K.G. testified about the sexual acts that the Rosas allegedly committed against her. Defense counsel then impeached her with a tape-recorded statement from September 20, 1991, which was inconsistent with her testimony at trial. (Unfortunately, the court's opinion doesn't give the details of the tape-recorded statement, so we don't know how inconsistent it was). Thereafter, with no objection by defense counsel, the prosecutor had a detective testify that he took a statement from K.G. the following November, which the detective claimed was consistent with K.G.'s testimony at trial, with no material inconsistencies between her statement and her testimony.

After she was convicted, Rosa appealed, claiming, inter alia, that she did not receive the effective assistance of counsel because K.G.'s statement to the detective was inadmissible hearsay and would be been excluded if her trial counsel objected to its admission. The Court of Appeals of Ohio, Eighth District, agreed with Rosa that the detective's testimony was objectionable because

The transcript reveals that the inconsistent tape-recorded statement by the minor child was given on September 20, 1991, whereas the interview with [the police officer] was conducted the following November. Thus, any consistent statements made to that witness occurred after, not before, the prior inconsistent statements used to impeach the child's testimony. The testimony of this witness could not be classified as ‘non-hearsay’ under Evid.R. 801(D)(1)(b) and should have been excluded * * *."

That said, the court found this error to be harmless because "the jurors heard the testimony of the witnesses and were able to judge credibility for themselves." Now, in fairness to the court, there was other evidence of Rosa's guilt, although none of them actually witnessed the alleged acts of sexual conduct. That said, if defense counsel had objected, they only would have heard that K.G. alleged sexual abuse by Rosa at trial and had previously made a statement inconsistent with her testimony at trial. Without defense counsel's objection, jurors got to hear that K.G. had also made a statement to a detective that was consistent with her testimony at trial. That seems like a pretty big deal to me. Without knowing exactly how consistent K.G.'s prior statement was, it is tough for me to say whether the court should have granted Rosa a new trial, but it seems to me to be a closer call than the court found.